Uber driver accused of rape started work after 14 years in federal prison

Assault suspect spent 14 years in prison for drugs

Uber cab driver Duncan Burton, 57, arrested and charged with sexual assault. According to court documents, Burton performed sexual acts on the woman who he knew was unconscious and unaware and could not provide consent.

Duncan Eric Burton would not have been eligible for a city-issued permit to drive for Uber, a city official said Tuesday, because he had left prison less than three years earlier after serving 14 years on a felony drug charge.

But Burton, like an unspecified number of other drivers for the smartphone-app ride-sharing service, was working without a permit in January, when he allegedly sexually assaulted a passenger.

And Uber's background check, which he passed, didn't flag his federal conviction because it occurred more than seven years before he applied to drive for Uber; the company limits background checks for all crimes other than sex offenses to seven years.

The disclosure of Burton's criminal record just a few days after he was charged with sexually assaulting a drunken passenger raised new questions about the company's procedures and the city's capacity to enforce regulations intended to ensure passengers' safety.

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"When you have a situation where a company comes into the city, operating illegally, and you work with them and they still don't obey, you've got a problem on your hands," said Michael Kubosh, a city councilman who opposed changing the city's taxi and limousine code to accommodate ride-sharing services like Uber and Lyft.

City officials Tuesday said they were still determining legal options for getting Uber to comply, and how best to enforce regulations on the company's hundreds - perhaps thousands - of Houston drivers with a handful of regulatory inspectors and available police.

The changes to the city's regulations, in effect since November, included a requirement that all drivers obtain a city permit. But Uber has acknowledged that Burton was among a number of drivers who hadn't obtained a permit, blaming the problem on a backlog at the city's permit center. City officials dispute that delays are keeping anyone from obtaining permits.

Company officials did not respond to repeated requests for comment Tuesday after Burton's federal prison term was confirmed. Previously, Uber spokeswoman Debbee Hancock said he was cleared by their employee screening, but immediately removed from their online platform when the company learned of his arrest on Thursday.

Felony charge

Burton, 57, was charged April 1 with one count of sexual assault, a second-degree felony. A woman said she woke up Jan. 27 in a strange bed after a night of drinking. Burton told investigators the woman was unable to tell him where she lived, and efforts to find her house were unsuccessful.

Burton took her to his house, where he said the two had consensual sex. She told police she had no recollection of Burton or of consenting to sex.

If convicted, Burton faces a maximum sentence of 20 years in prison. He remains in the Harris County Jail without bail.

Burton served 14 years for conspiracy to possess with intent to distribute cocaine, according to court records and the U.S. Bureau of Prisons. Although sentenced originally to 18 years, he got credit for good behavior and previous time spent in jail.

Court records show that Burton was convicted after an 11-day trial involving a dozen defendants. After challenging some issues on appeal, he was tried and again convicted in 2000.

Duncan served time in Beaumont, Louisiana and Georgia before being freed to a Houston-area halfway house in April 2012.

With such a recent federal prison term, Burton would not have passed the city's scrutiny, said Lara Cottingham, deputy assistant director in the city's Regulatory Affairs Department. City rules say anyone who has been convicted or served time for certain crimes - including the use or sale of drugs - may not receive a permit if the incarceration, conviction or probation for the offense happened in the last decade.

There is no record Burton even applied for a permit, making him one of many drivers operating outside the purview of the city, the company said.

Checks challenged

The revelation that passengers can hop into unapproved vehicles with drivers who have not had the required screening angered city officials and Uber critics, who have said for months the company's background check system is inadequate.

"The regulatory affairs department, they are in charge in determining whether this individual should be behind the wheel with this passenger," said Dave Sutton, spokesman for the Who's Driving You? campaign, an initiative of the Taxicab, Limousine & Paratransit Association, a national cab lobbying group. "That is not Uber's decision to make."

Citations levied against drivers have proven an ineffective motivation to get Uber and its partner drivers - technically, the drivers are independent contractors - to comply. More than 740 citations have been written in 2015 in Houston for various violations related to Uber drivers carrying passengers without the proper permits or equipment, such as an in-vehicle fire extinguisher.

City staff must take the issue more seriously, said Kubosh, the councilman.

"If you put up a strong message and start impounding vehicles, then it gets their attention," Kubosh said, noting his discomfort with punishing drivers.

Immune to fines

Valued at $40 billion by some estimates, Uber is immune to municipal fines, which it normally pays on behalf of the driver, Sutton said. "With fines you can't really hurt them," Sutton said. "With enforcement sometimes you have to go where the weak link is, and that unfortunately is the drivers."

Houston officials might not get a chance to hold drivers accountable. City officials are expected to testify in Austin on Thursday against a bill, HB 2440, that would give the state sole authority to govern Uber and similar companies. The company has lobbied hard in Austin for the bill, which would give it total control of the background checks conducted on drivers. The bill, by Rep. Chris Paddie, R-Marshall, would exclude drivers based on similar standards to what Uber already demands, including a lifetime ban on anyone convicted of sexual crimes or using a vehicle in the commission of a felony.

Paddie's bill would not prohibit a circumstance such as Burton's, where an ex-convict could soon start driving for Uber.

Who's Driving You? lists passengers in San Francisco, Philadelphia, Orlando, Fla.; Washington, D.C.; and other cities who have accused drivers of sexually assaulting or touching them inappropriately. Charges against a Chicago driver were dropped earlier this week.